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PUBLICATIONS
NEW FMLA REGULATIONS
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2013-05-02
On February 6, 2013, the United States Department of Labor (DOL) issued new Family and Medical Leave Act (FMLA) regulations. The new rules went into effect on March 8, 2013, and make several key changes to military caregiver leave, qualifying exigency leave and leave eligibility for airline flight crew employees. The regulations also clarify how to calculate intermittent FMLA leave and provide guidance on employers’ recordkeeping requirements.
LACTATION ACCOMMODATION: CALIFORNIA V. FEDERAL LAW
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2013-04-16
Congress amended Section 7 of the Fair Labor Standards Act (FLSA) to provide a break time requirement for nursing mothers to express breast milk. In December 2010, the U.S. Department of Labor (DOL) issued a preliminary interpretation, providing some guidance some guidance as to the application of the rules.
MIXED SIGNALS OVER INVESTIGATION CONFIDENTIALITY
By Jennifer Brown Shaw and Lukas J. Clary
The Daily Recorder
2013-04-05
Employers conducting internal investigations into employee complaints of workplace wrongs generally seek to keep the information they obtain confidential. The Equal Employment Opportunity Commission’s guidelines to workplace investigations recommend that employers protect confidentiality to the extent possible. After all, employees may fear retaliation when they participate in an investigation. The promise of confidentiality (to the extent practicable) encourages employees to come forward.
NEW DEVELOPMENTS REGARDING DISABILITY ACCESS LAWS AND THEIR EFFECTS ON EMPLOYERS
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2013-03-20
California employers are required to “reasonably accommodate” disabled employees under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act. Entities operating places of public accommodation – including retail establishments, schools, hotels, restaurants, banks, theatres, and stadiums – also must make their facilities and services accessible to disabled members of the public under the ADA and the California Disabled Persons Act (“DPA”). Businesses are obligated to remove physical barriers – including architectural, communications, and transportation impediments – to ensure access.
MIXED MOTIVE DISCRIMINATION
By The Daily Recorder
Jennifer Brown Shaw and Alayna Schroeder
2013-03-05
The plaintiff in a civil lawsuit has to prove his or her case by a “preponderance” of the evidence. That standard means the fact finder (often a jury) believes it is more likely than not that the plaintiff was wronged. In discrimination cases under the Fair Employment and Housing Act, the plaintiff has to prove it is more likely than not that an illegal reason was the employer’s motivation for taking negative action (e.g., discharge). What if some evidence shows the employer acted for lawful reasons, but there is also evidence of an illegal motive? Can the employer be held liable if there is 50.1% likelihood that one illegal reason existed, even though there was evidence the employer would have taken action regardless? In Harris v. City of Santa Monica, the California Supreme Court decided these issues surrounding the plaintiff’s and defendant’s burdens of proof in so-called “mixed motive” cases.
EMPLOYEES MUST COOPERATE IN EMPLOYER INVESTIGATIONS
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2013-02-20
An employer’s failure to take steps to prevent discrimination, harassment, or retaliation may lead to liability under the Title VII of the federal Civil Rights Act of 1964 or its California counterpart, the Fair Employment and Housing Act (“FEHA”). Every employer as part of an effective prevention program should implement a complaint procedure that allows employees to report perceived mistreatment to management. An employer should also promptly investigate any reported mistreatment.
ANNUAL COMPLIANCE CHECKLIST FOR EMPLOYERS
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2013-02-06
Employers periodically must comply with certain obligations imposed by law. These requirements arise annually or at other intervals, and are separate from those that arise when the employer hires or discharges employees. The following are some of the obligations employers should ensure are on their calendars for annual review.
POT IN THE WORKPLACE
By Jennifer Brown Shaw and Jasmine L. Anderson
The Daily Recorder
2013-01-23
Colorado and Washington recently passed laws legalizing the recreational use of marijuana. Eighteen states (including California) and the District of Columbia allow the use of “medicinal” marijuana in certain circumstances. California employers must understand how medicinal marijuana laws affect “drug- free workplace” policies and the duty to reasonably accommodate individuals with disabilities.
CHANGES TO CALIFORNIA’S PREGNANCY AND DISABILITY DISCRIMINATION REGULATIONS
By Jennifer Brown Shaw and William D. Bishop
The Daily Recorder
2013-01-08
This year, the Department of Fair Employment and Housing will administer and enforce newly revised regulations addressing discrimination based on pregnancy and disability. The final regulations, which took effect on December 30, 2012, are the product of years of rulemaking proceedings, public hearings and comments. Some of the amendments are technical or simply update terminology. However, the agency has also substantially modified the previous regulations in a number of ways. Below are the key provisions.
BAD HIRES CAN TURN INTO BAD EMPLOYEES
By Jennifer Brown Shaw and William D. Bishop, Jr.
CalChamber, California Employer Update
2013-01-01
“Bad employees” — poor performers or workers who otherwise do not live up to management’s expectations — aren’t good for the workplace.
It’s not easy to explain why this happens to some employees. It might be a personal issue, such as a divorce, that spills over into the employee’s behavior at the workplace. Perhaps the employee is secretly fighting a substance abuse issue. Maybe the employee is developing a particularly nasty personality conflict with a co-worker.
NEW RULES FOR PERSONNEL FILE INSPECTION AND COPYING
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2012-12-28
Governor Jerry Brown recently signed AB 1744, AB 2674, and SB 1255, all of which take effect on January 1, 2013. These laws set forth new rules regarding itemized wage statements and personnel file inspection and copying, as well as the Wage Theft Prevention Act notice employers must provide to non-exempt employees.
CALIFORNIA COURT APPROVES “ROUNDING” PRACTICE
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2012-12-19
Many California employers use electronic timekeeping systems to track employee work hours and properly calculate pay. These systems sometimes “round” time up or down—for example, to the nearest quarter hour. The California Division of Labor Standards Enforcement (DLSE) and United States Department of Labor (DOL) have historically approved this practice, provided it is “used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” In See’s Candy Shops v. Superior Court of San Diego, the California Fourth Appellate District Court also determined that under certain conditions, an employer may lawfully employ a neutral rounding policy.
NEW LAWS FOR CALIFORNIA EMPLOYERS - PART 2
By Jennifer Brown Shaw and Jasmine L. Anderson
2012-11-28
Commuter Benefits – SB 1339
Private-sector employers with operations in San Francisco and more than 20 employees anywhere in the country already must comply with a “commute benefits” ordinance. Covered businesses must offer to San Francisco employees a pre-tax deduction of up to $125 each month to pay for covered commute expenses; a monthly subsidy equivalent to the price of the San Francisco Muni Fast Pass (currently $74/month); or a company-funded bus or van between employee home and business locations.
NEW LAWS FOR CALIFORNIA EMPLOYERS - PART 1
By Jennifer Brown Shaw and Jasmine L. Anderson
The Daily Recorder
2012-11-14
New federal and California laws affecting California employers will take effect on January 1, 2013. Employers should begin preparing for changes to their policies and practices in advance of the new year.
CALIFORNIA ENTERTAINMENT INDUSTRY EMPLOYMENT LAW CASES
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2012-11-01
When it comes to legal disputes, entertainment industry employers face the same issues that confront less glamorous employers. Many disputes likely are resolved outside of the public eye. But there have been a number of employment law cases involving celebrities. Some have established precedents that apply to the rest of us.
RECENT DEVELOPMENTS IN FMLA CASE LAW
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2012-10-25
The federal Family and Medical Leave Act has been part of workplace law since 1993. The courts continue to interpret the Act, its amendments, and its regulations, including relatively recent changes implemented in 2009. Rulings concerning the FMLA may influence California courts’ interpretations of the similar California Family Rights Act. Below are some notable recent developments.
THE INSIDE SALES EXEMPTION IN CALIFORNIA
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2012-10-15
There are state and federal law provisions that exempt certain employees from laws requiring overtime pay. The various exemptions apply only to those workers who meet the exemptions’ particular criteria. These criteria may differ under state and federal law. As a result, an employee may be entitled to overtime under federal law, even if his job qualifies for an exemption under state law (and vice versa).
EMPLOYMENT VERIFICATION OF IMMIGRANTS ELIGIBLE FOR DEFERRED ACTION
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2012-09-18
On June 15, 2012, the Obama administration announced that it would begin exercising prosecutorial discretion and defer deportation proceedings for certain undocumented immigrants. In a memorandum to several immigration and customs enforcement agencies, Secretary of Homeland Security Janet Napolitano described how “the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against young people who were brought to this county as children and know only this country as home.”
CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2011-2012 - PART 2
By Jennifer Brown Shaw and Jasmine L. Anderson
The Daily Recorder
2012-09-04
This article is Part 2 of a two-part series regarding recent California Supreme Court decisions in employment law.
CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2011-2012 - PART 1
By Jennifer Brown Shaw and Jasmine L. Anderson
The Daily Recorder
2012-08-21
The California Supreme Court decided several significant employment law cases during the past year. This article provides a summary of these decisions and also highlights several important matters pending review.
U.S. SUPREME COURT EMPLOYMENT LAW DECISIONS 2011-2012
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2012-08-07
The United States Supreme Court decided several important cases affecting employers during its October 2011 Term. Below is a summary of the Court’s major labor and employment law decisions in chronological order. We intentionally have omitted the healthcare cases.
DRAFTING A LAWFUL SOCIAL MEDIA POLICY IS TRICKY
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2012-07-24
Much has been written about employers’ concern with employees’ use of social media outside of work, particularly when employees express negative sentiments about their employers or co-workers, and when employees share employers’ confidential information. As Twitter, Facebook, and other sites grow in popularity and influence, many employers have created policies to address appropriate use of these services.
U.S. SUPREME COURT DECIDES PHARMACEUTICAL SALES REPRESENTATIVES ARE EXEMPT
By Jennifer Brown Shaw and Timothy Reed
The Daily Recorder
2012-07-10
California and federal law each exempt from various wage and hour laws employees who sell goods and services outside the employer’s place of business. California employers must comply with both laws, generally by applying the one that is more generous to employees. Recently, in Christopher v. SmithKline Beecham Corporation, the United States Supreme Court addressed the federal outside sales exemption. The decision may influence how courts and agencies apply the exemption under California law as well.
KEEPING UP WITH THE EEOC
By Jennifer Brown Shaw and Jasmine L. Anderson
The Daily Recorder
2012-06-26
It has been a busy year for the U.S. Equal Employment Opportunity Commission (“EEOC”). So far in 2012, the EEOC has issued regulations or policy guidance with respect to the “reasonable factors other than age” defense under the Age Discrimination in Employment Act (“ADEA”) and discrimination against transgendered employees or job applicants under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC also issued guidance limiting an employer’s ability to consider a job applicant’s arrest or conviction records in making employment decisions.
EEOC ISSUES NEW GUIDANCE REGARDING CRIMINAL RECORDS
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2012-06-18
Employers commonly conduct criminal background checks, and may use such information to disqualify candidates for employment. For example, a pharmaceutical company may think twice before hiring someone it discovers has been recently convicted of a drug-related offense, while a bank obviously could decide that a convicted robber might not make a good teller. Failing to perform such “due diligence” could result in claims for negligent hiring too, where, for example, an employer fails to take steps to discover an applicant’s history of violent crimes, and that individual later harms another employee or member of the public.
THE DLSE HAS BROAD AUTHORITY TO AWARD "LIQUIDATED DAMAGES"
By Jennifer Brown Shaw and Amy Lee
The Daily Recorder
2012-05-30
Governor Brown signed legislation amending Labor Code sections 98 and 1194.2 effective January 1, 2012. The new provisions allow the Division of Labor Standards Enforcement (DLSE) to award "liquidated damages" to employees who file administrative claims with the agency. Previously, liquidated damages were available only in court actions.
ATTENDANCE AS AN ESSENTIAL JOB FUNCTION
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2012-05-15
Sometimes, an employee with a disability needs a “reasonable accommodation“—a change to the work environment or the way the job is performed that allows the employee to perform the job’s essential functions. Temporary changes to attendance requirements and leaves of absence may be forms of reasonable accommodation in certain circumstances. However, employers are not required to remove essential job functions. The U.S. Ninth Circuit Court of Appeals in Samper v. Providence St. Vincent Medical Center, addressed when regular attendance is an essential job function under the Americans With Disabilities Act (ADA).
CALIFORNIA SUPREME COURT CLARIFIES MEAL AND REST PERIOD LAW
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2012-05-01
Under California law, employers are required to make available to nonexempt employees meal and rest breaks. Employers that fail to do so must pay certain premium wages. After years of litigation over these seemingly simple requirements, the California Supreme Court on April 12, 2012, issued its long-awaited opinion in Brinker Restaurant Corp. v. Superior Court. The Court provided welcome guidance to the bench and bar regarding class certification law and meal and rest period requirements.
UNDERSTANDING THE NEW NLRB ELECTION PROCEDURES
By Jennifer Brown Shaw and Jasmine L. Anderson
The Daily Recorder
2012-04-17
The National Labor Relations Board is once again flexing its muscles to the detriment of the nation’s employers. On December 21, 2011, the Board issued its final rule amending its union election procedures; it becomes effective April 30, 2012. The Board intends the new rule to “reduce unnecessary litigation and delays.”
PREPARING FOR AN I-9 AUDIT
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2012-04-03
The Immigration and Customs Enforcement division (ICE) of the Department of Homeland Security (DHS) is responsible for curtailing the hiring of undocumented aliens. In the past few years, the agency has focused on "silent raids" targeting employers who employ these individuals.
SUPREME COURT CLARIFIES ADMINISTRATIVE EXEMPTION
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2012-03-20
California employers’ decisions to classify workers as “exempt” from overtime and other wage-hours laws are among the most commonly litigated claims. There is ample ground for disputes between lawyers and their clients. Determining whether an employee is properly classified as exempt is fact-specific and requires applying vague and confusing laws and regulations.
CALIFORNIA COURT OF APPEAL PROVIDES GUIDANCE REGARDING REPORTING TIME AND SPLIT SHIFT PAY
By Jennifer Brown Shaw and Timothy Reed
The Daily Recorder
2012-03-07
The California Industrial Welfare Commission’s (“IWC”) wage orders describe the circumstances under which California employers must pay employees for “reporting time” and “split shifts.” A “split shift” is “a work schedule that is interrupted by non-paid non-working periods established by the employer,” other than meal or rest breaks. “When an employee works a split shift, one . . . hour’s pay at the minimum wage shall be paid in addition to the minimum for that workday.”
PROPOSED CHANGES TO THE FAMILY AND MEDICAL LEAVE ACT
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2012-02-28
The federal Family and Medical Leave Act (“FMLA”), which applies to employers with 50 or more employees, is designed to help employees balance personal and family obligations by allowing them to take job-protected leave for certain qualifying reasons. Recently, the U.S. Department of Labor (“U.S. DOL”) proposed additional changes to incorporate legislative changes to the FMLA.
REASONABLE ACCOMMODATION AND JOB APPLICANTS
By Jennifer Brown Shaw and Alexander Sperry
The Daily Recorder
2012-02-07
Consider this scenario: An individual calls in response to an employer’s listing for a warehouse position. When asked to come in for a two-hour interview, the applicant mentions having “trouble sitting for long periods” due to his “bad back,” and asks if the interview can be broken up into two, one-hour visits. He also discloses that he never graduated from high school because of a “learning disability,” but states he has great prior experience.
REQUIRED EMPLOYEE WAGE NOTICES
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2012-01-24
Beginning January 1, 2012, the California Labor Code requires most California employers to provide newly hired employees with a written notice that contains basic information about the employer and the employee’s wages. Called the Wage Theft Prevention Act of 2011, and passed last year as part of AB 469, the new law mandates employers include information specified in the statute and other disclosures the California Labor Commissioner—the state agency tasked with enforcing many of the state’s wage-related rules—deems “material and necessary.”
STATE EMPLOYMENT CREDIT CHECK LAW TAKES EFFECT
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2012-01-17
California employers may wish to obtain employees' and applicants' credit information as part of their hiring processes and for other employment-related reasons. Assembly Bill 22, which took effect on January 1, 2012, significantly restricts employers' ability to procure credit reports. The new law specifically applies to credit checks and does not address criminal record and other background checks.